Legal guardians and wills: what every parent needs to know

If you’re a parent, one of the most important steps you can take to protect your child’s future is to ensure your will is up to date — including naming someone you trust to make decisions about your child if something happens to you. In New Zealand, there are two main ways someone can become a guardian of your child under the Care of Children Act 2004: either by being appointed in your will (as a “testamentary guardian”) or by the Family Court.

This article explains how those appointments work, why it’s important to take action now, and what happens if you don’t leave a will.

What is a testamentary guardian?

A testamentary guardian is someone you name in your will to become a guardian of your child if you die. This guardian may help make important decisions about your child’s education, religion, health or culture — essentially stepping into the shoes of a parent in key areas of life.

However, this role does not automatically give the guardian the right to care for your child day to day. If they want that role, they must apply to the Family Court for a “parenting order”. This ensures the Court can consider whether that arrangement is in the child’s best interests.

The law also provides that:

1. The appointment takes effect immediately upon your death, but only if you were a legal guardian at the time.
2. If you weren’t a guardian when you passed away, the person you appointed must apply to the Court to be officially recognised.
3. The person must be 20 or older to automatically take up the role. If they’re younger, they don’t assume guardianship until they turn 20.

It’s generally not recommended to appoint more than one testamentary guardian, as this can cause conflict or confusion for surviving guardians or other family members. The Court is also unlikely to uphold multiple competing appointments.

While you are not legally required to get the person’s consent before naming them, we strongly recommend discussing it with them. If they do not want the role when the time comes, they may have to apply to the Court to be removed, which could delay or complicate care arrangements at an already difficult time.

What if no testamentary guardian is appointed?

If no testamentary guardian is named — or the person cannot or will not act — the Family Court may appoint a guardian under section 27 of the Act. This can occur in response to an application filed with the Court (such as by a relative or family friend), or if the Court identifies the need on its own.

The Court has flexibility to:

• appoint a guardian either generally or for a specific purpose (e.g. medical decisions);
• make the appointment for a set period or permanently; or
• appoint the guardian either alongside other guardians or as a sole guardian.

Court-appointed guardianships usually arise when:

• there is no surviving legal guardian;
• a child’s care is unstable or at risk; or
• a family member or trusted adult is already caring for the child but needs formal authority.

The key principle is always what is in the child’s welfare and best interests. Judges will assess whether the proposed appointment supports the child’s stability, safety and connection to family and whānau. Courts are cautious about creating arrangements that could result in ongoing conflict or confusion over decision-making, especially where multiple adults are involved.

The importance of keeping your will updated

Many people don’t realise that marriage or entering a civil union automatically cancels your will, unless your will specifically states it was made in contemplation of that relationship.

This means any arrangements you’ve made — including appointing a guardian — could be invalidated without you realising. It is crucial to review your will if:

• you have married, separated, or divorced;
• you have had a child;
• a named guardian or beneficiary has passed away; or
• you have acquired significant assets or changed your wishes.

A valid, up-to-date will gives you control over who may make decisions for your children and how your assets are distributed. Without one, those decisions may be made by the Court — and not necessarily in line with what you would have wanted.

What happens if you die without a will?

If you die “intestate” (without a valid will), your assets will be divided according to the Administration Act 1969. This may lead to results that you did not intend.

For example, if you leave behind a partner and children and no valid will, the law currently provides that:

• your partner receives your personal belongings, the first $155,000 of your estate (plus interest), and one-third of what’s left; and
• your children share the remaining two-thirds.

This might not reflect your actual wishes, especially if you wanted your partner to receive more, have children from a previous relationship, or wish to provide for a stepchild or dependent. More importantly, if you haven’t named a guardian, it may not be immediately clear who will make decisions for or care for your child, and the Court may have to step in to decide.

Final thoughts: peace of mind for you and your children

Naming a testamentary guardian in your will is one of the most important decisions a parent can make, but it only takes effect if your will is valid and up to date. Without clear instructions, the people you trust most may not have the legal authority to care for your children and your wishes may not be carried out.

If you haven’t reviewed your will recently, or haven’t yet appointed a guardian, we recommend getting in touch. Our family and estate planning team can help ensure your wishes are clear, legal, and enforceable — giving you peace of mind and protecting your child’s future.

Courtney Donaldson – Senior Associate, Wynn Williams Relationship Property team

Gracie Hooper – Solicitor, Wynn Williams Relationship Property team